Waddon v Whitecroft Scovell Ltd

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Keith of Kinkel,Lord Roskill,Lord Brandon of Oakbrook,Lord Griffiths,Lord Oliver of Aylmerton
Judgment Date11 Feb 1988
Judgment citation (vLex)[1988] UKHL J0211-1

[1988] UKHL J0211-1

House of Lords

Lord Keith of Kinkel

Lord Roskill

Lord Brandon of Oakbrook

Lord Griffiths

Lord Oliver of Aylmerton

Waddon (A.P.)
(Appellant)
and
Whitecroft Scovill Limited
(Respondents)
Lord Keith of Kinkel

My Lords,

1

I have had the advantage of considering in draft the speech to be delivered by my noble and learned friend Lord Brandon of Oakbrook. I agree with it, and for the reasons he gives would dismiss the appeal.

Lord Roskill

My Lords,

2

I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Brandon of Oakbrook, I agree with it, and for the reasons that he gives would dismiss the appeal.

Lord Brandon of Oakbrook

My Lords,

3

This appeal arises in an action for personal injuries brought by the appellant against the respondents in the Newport (Gwent) District Registry of the High Court, Queen's Bench Division. By an order made on 20 July 1984 the District Registrar set aside an extension of the validity of the writ granted earlier on an ex parte application by the appellant. By an order made on 21 September 1984 Michael Davies J. dismissed an appeal by the appellant against the order of the District Registrar and gave him leave to appeal to the Court of Appeal. By an order made on 13 March 1985 the Court of Appeal (Ackner and Goff L.JJ. and Sir George Waller) dismissed the appellant's appeal against the order of Michael Davies J. The appellant now brings a further appeal with the leave of your Lordships' House.

4

The detailed history of the matter is as follows. Towards the end of 1979 the appellant contracted dermatitis while employed by the respondents as a machine operator. He alleges that his dermatitis was caused when his skin came into contact with a mixture of paraffin and machine oil in the course of his employment, and that this was due to the negligence of the respondents in failing to provide a safe system of work for him.

5

The appellant first consulted solicitors in June 1982. On 30 June 1982 the solicitors applied for legal aid on his behalf and on 4 October 1982 a certificate was granted which covered the obtaining of evidence and the taking of counsel's opinion but not the issue of a writ. On 25 November 1982 counsel advised that expert evidence was required and that in the mean time a writ should be issued. This was necessary because the primary period of limitation of three years applicable to the appellant's intended claim would otherwise have expired without an action in respect of it having been brought. On the same day, 25 November 1982, the solicitors applied for an extension of the legal aid certificate to cover the issue, but not the service, of a writ, and this application was granted on the following day, 26 November 1982. The appellant's solicitors issued the writ on 29 November 1982, and on 9 February 1983, after making appropriate inquiries, instructed a firm of engneering consultants to report on the case. On the same day they wrote to the respondents notifying them of the claim and asking for facilities for inspection. On 25 March 1983 the respondents' insurers acknowledged the letter of claim and asked for a copy of the appellant's medical report. They refused inspection facilities but said that they would reconsider the matter on being told of the specific allegations of negligence being made. On 12 May 1983 the appellant's solicitors wrote to the insurers enclosing a medical report and repeating their request for inspection facilities, adding that the main allegation against the respondents was that they operated a system of work under which their employees were bound to come into contact with paraffin and other oil, and no adequate protective clothing was provided. On 9 August 1983, after the appellant's solicitors had issued a summons for inspection facilities, the insurers agreed to allow them. A mutually convenient date could not be arranged until 20 October 1983, when an expert engineer instructed by the appellant's solicitors inspected the respondents' factory.

6

On 9 November 1983 the appellant's solicitors lodged in the District Registry an ex parte application for the extension of the original period of validity of the writ for twelve months, supported by an affidavit, to the contents of which I shall refer later. On 18 November 1983 the appellant's solicitors received a report from the engineer favourable to the appellant's case. On 23 November 1983 the validity of the writ was extended for twelve months from the date of its issue and the appellant's solicitors were informed of this on the following day, 24 November 1983. But for that extension the validity of the writ would have expired on 28 November 1983. On 1 December 1983 the appellant's solicitors received an advice from counsel that the claim could proceed. On 6 December 1983 they applied for the removal of the remaining limitation on the appellant's legal aid certificate, and on the following day, 7 December 1983, that application was granted.

7

The writ appears to have been mislaid in the District Registry and was not returned to the appellant's solicitors until 26 March 1984, with the extension of its validity until 28 November 1984 shown on it by a stamp dated 26 March 1984. On 16 April 1984 the writ, with its validity so extended, was served on the respondents' solicitors. On 3 May 1984 the respondents' solicitors applied to set aside the extension of the validity of the writ granted ex parte on 24 November 1983. There followed the order of Michael Davies J. made on 21 September 1984 and the order of the Court of Appeal made on 13 March 1985 to which I referred earlier.

8

I said that the original ex parte application for extension of the validity of the writ was supported by an affidavit. That affidavit was made by a solicitor employed by the firm of solicitors acting for the appellant. In it the deponent gave a brief account of the steps taken in the action so far and stated that the expert engineer's report, as was then the case, had not yet been received. Paragraph 5 of the affidavit was in these terms:

"When the report is available and the evidence can be reviewed it is to be hoped that an application can be made for the limitation on the Legal Aid certificate to be removed whereafter the writ would be served but in the meantime it is requested that the validity of the writ be extended for a period of twelve months. It is respectfully submitted that in these circumstances where the defendants and their insurers are fully aware of the plaintiff's potential claim no prejudice can be caused to them by this delay in service of the writ."

9

I feel bound to observe that this affidavit was seriously defective in that it made no mention whatever of the fact that the primary period of limitation applicable to the appellant's claim would expire shortly. It is the duty of solicitors acting for a party on an ex parte application to the court to make a full and frank disclosure of all matters relevant to such application. The fact to which I have referred was, having regard to long-established authority on the extension of the validity of writs where questions of limitation are involved, not just a relevant matter but a crucial one. I would add that no reason of any kind was given in the affidavit why an extension of the validity of the writ for a period so long as twelve months could possibly be required.

10

On the hearing of the appellant's appeal to Michael Davies J. against the order of the District Registrar setting aside the extension of the validity of the writ no criticism was made by the respondents in respect of any delay by the appellant in consulting solicitors in the first place or in respect of anything done or omitted to be done by the appellant's solicitors prior to November 1983. It was argued, however, for the respondents that there was no good reason for extending the validity of the writ because the appellant's solicitors received the favourable report of their expert on 18 November 1983 before the extension was granted and with sufficient time available for them to have contacted counsel, if that was thought necessary, to apply for and obtain the removal of the remaining limitations on the appellant's legal aid certificate, and then to serve the writ on the respondents before the original period of its validity expired. Michael Davies J., in a careful and detailed judgment, reviewed the whole history of the case. He said that, although certain authorities suggested that exceptional circumstances had to be shown in order to justify extension of the validity of a writ when questions of limitation were involved, the appeal before him had been argued on the basis that it was enough for an applicant for such an extension to show good and sufficient reason for it. Proceeding on this basis he came to the conclusion, on all the facts of the case, that the appellant had not shown good and sufficient reason for extension, and he dismissed the appellant's appeal against the order of the District Registrar on that ground.

11

The Court of Appeal, in which the leading judgment was delivered by Ackner L.J., held that Michael Davies J. had exercised his discretion in accordance with proper principles and that there was therefore no ground for interfering with his decision.

12

My Lords, the validity of a writ for the purpose of service is regulated by R.S.C. Ord. 6, r. 8. That rule provides, so far as material:

"(1) For the purpose of service, a writ … is valid in the first instance for 12 months beginning with the date of its issue …. (2) Where a writ has not been served on a defendant, the Court may by order extend the validity of the writ from time to time for such period, not exceeding 12 months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an...

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